STATE OF NEW JERSEY VS. MICHAEL DANIELSÂ (10-03-0788, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0686-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL DANIELS,
Defendant-Appellant.
____________________________
Submitted March 30, 2017 – Decided May 18, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 10-
03-0788.
Joseph E. Krakora, Public Defender, attorney
for appellant (Andrew J. Shaw, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals the June 23, 2015 order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing.
We affirm.
On January 17, 2012, after a jury trial, defendant was
convicted of second-degree conspiracy to possess a controlled
dangerous substance (CDS), N.J.S.A. 2C:5-2 and 2C:35-10(a)(1);
third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-
degree possession with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and 2C:35-5(b)(3); third-degree distribution near school
property, N.J.S.A. 2C:35-7; and second-degree possession within
500 feet of a public housing complex, N.J.S.A. 2C:2C:35-7.1.
Defendant was sentenced to seven years with a three and a half
year parole disqualifier. His conviction was affirmed on appeal.
The underlying facts supporting his convictions are outlined in
our per curiam opinion on direct appeal and need not be repeated
here. State v. Daniels, No. A-3227-11 (App. Div. Dec. 31, 2012).
Defendant raised the denial of his motion for a mistrial in
his direct appeal. We were not persuaded a mistrial was mandated
because, even under the unusual circumstances, defendant was not
deprived of the opportunity to testify because of the inaccurate
judgment of conviction (JOC). Defendant also raised his trial
counsel's failure to discover the error as ineffective assistance,
an issue ordinarily preserved for PCR. We elected to consider the
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claim because all the relevant facts necessary to consider the
arguments were in the record. We recite the facts surrounding
this issue.
After trial summations, but before the jury was instructed,
defendant's attorney discovered the inaccuracy and moved for a
mistrial, arguing defendant's election not to testify was based
on the possibility the inaccurate JOC could be used to impeach
him. The trial judge immediately offered to re-open the case to
permit defendant to testify and proposed a jury instruction to
mitigate any perceived confusion that the re-opening of the
evidence might engender. Defendant rejected the offer. The judge
thereafter denied the motion for a mistrial. The case was
submitted to the jury, and following deliberations, defendant was
convicted.
After reviewing the record, we were convinced defendant's
trial attorney was not deficient because he had a right to rely
on a certified judgment without double-checking it; therefore, his
reliance did not fall below accepted standards. We also said,
defendant suffered no prejudice because the trial judge approached
the error very indulgently and proposed a reasonable solution to
the problem, which defendant elected not to accept.
On September 18, 2013, defendant filed a timely pro se PCR
petition. Counsel was assigned, and defendant filed an Amended
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Verified Petition and Supplemental Certification. Defendant
asserted his trial counsel was ineffective because he did not
investigate the accuracy of defendant's prior criminal history as
reported in an earlier JOC until after summation, thus depriving
defendant of the opportunity to testify on his own behalf.
Defendant argued his appellate counsel was ineffective for raising
the same issue on direct appeal rather than preserving it for PCR.
After hearing oral argument, the PCR judge denied defendant's
petition as procedurally barred by Rule 3:22-5, because
defendant's claim of ineffective assistance of trial counsel had
been adjudicated on the merits in the direct appeal. The PCR
judge also determined defendant's claim of ineffective assistance
of appellate counsel was without merit. This appeal followed.
A court reviewing a PCR petition based on claims of
ineffective assistance of counsel should grant an evidentiary
hearing if a defendant establishes a prima facie showing in support
of the relief requested. State v. Preciose, 129 N.J. 451, 462
(1992). In order to establish a prima facie case of ineffective
assistance of counsel, a defendant must demonstrate the reasonable
likelihood that his claim will succeed on the merits. Id. at 464.
To prevail on a claim of ineffective assistance of counsel,
defendant must meet a two-prong test. Defendant must first prove
(l) counsel's performance was deficient, and he or she made errors
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that were so egregious that counsel was not functioning effectively
as guaranteed by the Sixth Amendment to the United States
Constitution. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, (1984); State v. Fritz,
105 N.J. 42, 52 (l987). The second prong requires defendant to
show (2) the defect in performance prejudiced defendant's rights
to a fair trial such that there exists a "reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, 105
N.J. 42, 52 (l987); Fritz, supra, 105 N.J. at 52-53.
Defendant argues he elected not to testify at trial because
the State produced an inaccurate certified JOC indicating
defendant had a conviction for third-degree possession of CDS,
N.J.S.A. 2C:35-10(a)(1); however, his conviction was actually for
a disorderly persons offense. Defendant discussed this inaccuracy
with his trial counsel who did not investigate the issue.
Defendant argues but for the inaccurate JOC he would have testified
at trial.
Defendant raised the same issue regarding trial counsel in
his PCR petition, and the PCR judge correctly considered the claim
against trial counsel as fully adjudicated and procedurally barred
under Rule 3:22-5. The judge also rejected defendant's alternative
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argument his appellate counsel was ineffective because he raised
trial counsel's alleged ineffective performance on direct appeal.
Applying the Strickland-Fritz standard, the judge determined
appellate counsel's strategy decision to raise the issue on direct
appeal did not fall outside the range of competent legal
representation; thus, defendant could not establish a prima facie
claim of ineffective assistance of counsel. Having reviewed the
record and the PCR judge's determinations, we discern no reason
to disturb the court's determination to deny defendant's PCR
petition and deny an evidentiary hearing.
Affirmed.
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